IN THE SUPREME COURT OF OHIO

11- 197JIMMIE WHITE,

APPELLANT,

On Appeal from the ErieCounty Court of Appeals,Sixth District

Court of AppealsV. Case No. E-10-61

STATE OF OHIO,

APPELLEE,

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, JIMMIEWHITE

ERIC J ALLEN (0073384)THE LAW OFFICE OF ERIC J ALLEN, LTD713 South Front StreetColumbus, Ohio 43206(614)443-4840(614)445-7873

COUNSEL FOR APPELLANT, JIMMIE WHITE

KEVIN BAXTERERIE COUNTY PROSECUTOR247 Columbus Avenue Suite 319Sandusky, Ohio 44870

COUNSEL FOR APPELLEE, STATE OF OHIO

FU

CCtR{f OF COURTSUPREM-OURT OF ®HIO

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION ............................................................ I

STATEMENT OF CASE AND FACTS ......................................................2-3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .............................4-9

Proposition of Law # 1:

THE TRIAL COURT VIOLA TED APPELLANT'S RIGHT TO A SPEEDY TRIALUNDER THE STATE CONSTITUTIONAND PURSUANT TO OHIO REVISED CODE §

2945.71

CONCLUSION . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . ..10

PROOF OF SERV ICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . ...10

APPENDIX Anpx. Paee

EXPLANTATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL

QUESTION

At the essence of this case is the core of the right to a speedy trial. Appellant was

arrested and brought before a judge. He returned to Michigan. He sent correspondence

to the Municipal Court so that he could be apprised of any and all court dates. The

municipal court refused his correspondence. The court claimed that he missed a hearing

and a warrant was issued. Following his arrest he sat in the Wayne County Michigan

jail. When he got to the Erie county jail he sat. And he sat. He was then sent for a

competency evaluation and an evaluation for an NGRI plea. Nowhere in the proceedings

are there any indications that the Appellant is not sane or was sane at the time of the

alleged incidents. Further, Appellant did not make any indication that he would be

entering an NGRI plea. Arguably, this sua sponte evaluation was done to provide more

time under the statutory construct of 2945.71.

This court is the last resort for defendants to have their grievances redressed. The

duty to protect our state's constitution and enforce its laws falls upon this tribunal.

Appellant is merely requesting protection of his right to a speedy trial. The trial court

ignored it and extended the time to bring him to trial by ordering a unnecessary mental

evaluation. The appellate court affirmed this decision without addressing the issue of

ordering a competency evaluation to toll the speedy trial time.

1

STATEMENT OF THE CASE AND FACTS

Statement of the Facts

At the end of March, 2008, the state alleges that Appellant was forging traveler's

checks, receiving stolen electronic merchandise, and being in possession of an

identification card of an Andrew Rice.

Statement of the Case

On March 22, 2008, Appellant was arrested in Erie County, Ohio. On March 24,

2008 he made an initial appearance in the Sandusky Municipal Court. Bail was set in the

amount of ten thousand dollars cash or surety with a ten percent provision. The matter

was continued until March 27, 2008, again until April 3, 2008 and again until April 15,

2008. He did file an appearance which was not recognized by the court. In fact his

correspondence was refused by the Municipal Court. On April 15, 2008, Appellant did

not appear and a warrant issued.

Appellant was arrested in Michigan on November 24, 2009. Appellant was not

brought before a judge in Michigan until January 5, 2010. At that time the judge set

another court date for January 15, 2010. At that court date, the State of Ohio had yet to

produce a governor's warrant. Appellant was released on a five thousand dollar bond.

On May 19, 2010, Appellant was arrested and brought before a judge in

Michigan. At that time there was a governor's warrant and the court stated if Ohio had

not yet picked Appellant up by June 30, 2010, they would reconvene.

On June 8, 2010, an arraignment was held before Judge Tone of the Erie County

Common Pleas Court. Not guilty pleas were entered and bond was set in the form of

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cash, surety or property in the amount of eighty thousand dollars. A pretrial was set for

June 18, 2010.

At the June 18, 2010 hearing Appellant waived his right to counsel to represent

himself. A jury trial date of July 26, 2010 was set. Appellant did not waive his right to a

speedy trial.

On July 7, 2010, the trial court sua sponte sent the Appellant to Toledo Court

Diagnostic Treatment center for an evaluation This evaluation was for the purpose of

competency and for a not guilty by reason of insanity plea.

A motion to stay all proceedings was filed on July 19, 2010. A motion to dismiss

was filed on July 28, 2010. It was renewed on September 1, 2010. Both were denied by

judgment entry of September 22, 2010.

The state of Ohio requested a trial date on September 16, 2010 and was granted

same to begin October 12, 2010.

On October 12, 2010 a plea and sentencing were held before Judge Tone.

Appellant plead guilty to an amended charge of receiving stolen property as a

misdemeanor. A timely notice of appeal was filed. Following briefing by both parties

the Sixth District Court of Appeals affirmed the trial court's decision on November 18,

2011.

3

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law # 1

THE TRIAL COURT VIOLA TED APPELLANT'S RIGHT TO A SPEEDYTRIAL UNDER THE STATE CONS TITUTION AND PURSUANT TO OHIO

REVISED CODE § 2945.71

1. STATE RIGHT TO A SPEEDY TRIAL

a. State Constitution

Article One section ten contains a prohibition against a lengthy pre trial

incarceration. Ohio Cont. Art. 1, § 10 (Appendix Ih) criminal defendant is guaranteed the

right to a speedy trial by the Sixth Amendment to the United States Constitution, which

was made applicable to the states as a fundamental right by the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. Kloper v. North Carolina

(1967), 386 U.S. 213, 222-223. The right is also guaranteed by Section 10, Article I of

the Ohio Constitution. Furthermore, state legislatures are authorized by Barker v. Wingo

(1972), 407 U.S. 514, 523, to enact procedural rules or laws consistent with the

Constitutional guarantee. Courts strictly enforce statutory speedy trial rights because the

speedy trial statutes protect the constitutional guarantee of a public speedy trial." State v.

Pachay (1980), 64 Ohio St.2d 218, syllabus.

b. Statutory

R.C. 2945.71 implements this guarantee with specific time limits within which a

person must be brought to trial." State v. Blackburn, 118 Ohio St.3d 163. If the State fails

to bring a defendant to trial within the time required by R.C. 2945.71 and 2945.72, the

trial court must discharge the defendant upon motion made at or prior to the start of trial.

R.C. 2945.73(B).(Appendix VI) The Ohio Supreme Court has "imposed upon the

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prosecution and the trial courts the mandatory duty of complying" with the speedy trial

statutes. State v. Singer (1977), 50 Ohio St.2d 103, 105,; see, also, State v. Parker 113

Ohio St.3d 207, at 4 14-15. An Appellate court must strictly construe the speedy trial

statutes against the state. See Brecksville v. Cooh 75 Ohio St.3d 53, 57.

II. THE ERIE COUNTY COMMON PLEAS COURT VIOLATED APPELANT'SSTATUTOR RIGHT TO A SPEEDY TRIAL

a. Appellant entered a not guilty plea at arraignment

At his arraignment on June 8, 2010, Appellant entered a not guilty plea to all

charges against him. At no time in this hearing did the court note the Appellant was

acting in a bizarre manner. Bond was set at eighty thousand dollars. A pretrial hearing

was set for June 18, 2010. Appellant was remanded back to the custody of the Erie

County Sherriff.

b. Appellant appeared at a June 18, 2010 hearing

Appellant appeared as his own attorney on June 18, 2010. The court did not

indicate at any point that it thought the Appellant was incompetent to stand trial in this

matter. Further, Appellant did not withdraw his not guilty plea and enter a not guilty by

reason of insanity plea.

c. Appellant filed no motions with the court

Pursuant to the docket in this matter, Appellant filed no motions that would toll

the speedy trial calculations prior to the court ordering an evaluation.

d. The Erie County Common Pleas court ordered competency evaluations

sua sponte

A trial court possesses no need to sua sponte inquire into a defendant's

competency unless the record contains "sufficient indicia of incompetence, such that an

5

inquiry is necessary to ensure the defendant's right to a fair trial." State v Berry, 72 Ohio

St.3d at 359, see, also, State v. Ahmed, 103 Ohio St.3d 27..

In State v. Rubenstein (1987), 40 Ohio App.3d 57, the court set forth a list of

considerations for a court to use in determining whether, sua sponte to order a

competency hearing. Such considerations include: "(1) doubts expressed by counsel as to

the defendant's competence; (2) evidence of irrational behavior; (3) the defendant's

demeanor at trial; and (4) prior medical opinion relating to competence to stand trial." Id.

at 60-61.

In this case, counsel appointed did not express any doubt about Appellant's

competence at any time prior to the courts sua sponte order of evaluation. There is no

evidence at all of irrational behavior on behalf of the Appellant. At no time in the two

prior hearings in June, 2010 was Appellants demeanor such that a sua sponte evaluation

was required. The record does not indicate any prior medical opinion about Appellant's

competence to stand trial.

e. The court ordered an evaluation for a not guilty by reason of insanity plea

Criminal rule 11 states, in part, "The defense of not guilty by reason of insanity

must be pleaded at the time of arraignment, except that the court for good cause shown

shall permit such a plea to be entered at any time before trial." Ohio Criminal rule 11 (h).

(Appendix V)

The court ordered a NGRI evaluation, sua sponte. It did not state on the record

any rationale for doing so as Appellant entered a not guilty plea on June 8, 2010.

6

f The court violated the speedy trial statute

i. Statute

A person facing felony charges must be brought to trial within two hundred and

seventy days. ORC 2945.71. A person that is incarcerated must be brought to trial

within 90 days. ORC 2945.71. (Appendix VII)

ii. Competency evaluation

Appellant was brought to the Erie County jail on May 27, 2010. The court set a

trial date of July 26, 2010. On its own motion, the court set the Appellant for a

competency evaluation on June 24, 2010. According to the docket no competency

hearing was ever held. The Ohio Revised Code is clear, " In a criminal action in a court

of common pleas, a county court, or a municipal court, the court, prosecutor, or defense

may raise the issue of the defendant's competence to stand trial. If the issue is raised

before the trial has commenced, the court shall hold a hearing on the issue as provided in

this section." ORC 2945.37(emphasis added) (Appendix VI) Further, this hearing must be

held within 30 days unless the person is being evaluated and then ten days after the report

is furnished. Id. There is no indication from the docket that a report has been generated in

relation to this Appellant's competency. Appellant did not appear bizarre or insane

during any of the court proceedings. The court did not note in any recorded hearing that

he was acting if he were not competent. It was not proper for the court to , sua sponte,

order a competency evaluation and NGRI evaluation without noting any indicia of bizarre

behavior on the part of the Appellant

7

iii. Calculation

Appellant was not brought to the Erie County jail until May 27, 2010. The court

ordered the evaluation on June 24, 2010. This is 28 days.

Appellant argues that this ordered evaluation was improper and that the time

should not be tolled. The next event is a motion to dismiss on July 19, 2010. This is 33

days.

The motion was not ruled upon until September 22, 2010, some 56 days later.

The court at that time set a court date for October 12, 2010. This is 20 days. The total is

137 days, well outside the parameters of 2945.71.

iv. A motion to dismiss based upon 2945.71 does not toll the speedy trial time

The Sixth District has stated:

Concerning the court's third rationale, while the general rule is that amotion to dismiss by a defendant tolls the time within which an accusedmust be brought to trial, R.C. 2945.72(E); State v. Bickerstaff (1984), 10Ohio St.3d 62, 67, it would require circuitous logic to apply the rule to amotion predicated on a violation of the speedy trial statute; this, we arenot prepared to do. In any event, appellant's motion to dismiss in thismatter prompted no period of delay in the proceedings, making R.C.2945.72(E) inapplicable in this instance.

State vJensen, 1995 WL 386454 atpage 2(Appendixll)

This court has stated as recently as 1995 that it was not prepared to toll the

speedy trial time when a motion to dismiss based on a speedy trial violation. Appellant's

motion to dismiss is based upon, among other things, a violation of the speedy trial

statute and his constitutional rights.

8

g• There was no waiver of a right to a speedy trial

i. Ohio Supreme Court has stated a plea constitutes a waiver

The Ohio Supreme Court stated in Montpelier v. Greeno (1986), 25 Ohio St.3d

170, 1, that "where an accused has entered a plea of guilty he waives his right to raise the

denial of his right to a speedy trial on appeal." See, also, Partsch v. Haskins (1963), 175

Ohio St. 139, 141, ("even assuming petitioner had made a demand for a speedy trial,

when he entered his plea of guilty, it amounted to a withdrawal of such demand and

waived his right to insist on a speedy trial"); State v. Branch (1983), 9 Ohio App.3d 160.

ii. The court does not admonish Appellant he is waiving this right

At the rule 11 hearing the court discusses the fact his plea of guilty is a complete

admission (T.P. 8 at lines 9-11), that the court could sentence him the same day (T.P. 8 at

lines 13-17), that Appellant understands he is giving up his right to a jury trial(T.P. 8 at

lines 18-23), that Appellant is giving up his right to confront witnesses(T.P. 9 at lines 1-

5), that Appellant is giving up his right to call witnesses (T.P. 9 at lines 6-11), that

Appellant did not have to have his case proven beyond a reasonable doubt (T.P. 9 at lines

12-17), that Appellant was giving up his right against self incrimination, and that

Appellant was giving up his right to appeal. (T.P 10 at lines 1-8. There is no

admonishment about a waiver of his statutory right to a speedy trial.

iii. a waiver of a constitutional right must be knowing and voluntary

The accused or his counsel, however, may waive the constitutional and statutory

right to a speedy trial so long as such waiver is made knowingly and voluntarily. State v..

O'Brian, 34 Ohio St.3d 7, 9; R.C. 2945.71 et seq.

9

There is no indication that Appellant understood that he was waiving his right to a

speedy trial by entering a guilty plea.

CONCLUSION

For the reasons discussed above, this case involves matters of public and great

general interest and a substantial constitutional question.

The appellant requests that this court grant jurisdiction and allow this case so that

the important issues presented in this case will be reviewed on the merits.

Respectfully submitted,

Eric J Allen(0073384)713 South Front StreetColumbus, Ohio 43206Ph: 614-443-4840Fax: 614-444-7873COUNSEL FOR APPELLANT

PROOF OF SERVICEI hereby certify that a copy of the foregoing was sent via Regular U.S. mail to the

Franklin County Prosecutors Office onZ 5 day of January, 2010.

Eric J Allen (0073384)713 South Front StreetColumbus, Ohio 43206Ph: 614-443-4840Fax: 614-444-7873COUNSEL FOR APPELLANT

10

APPENDIX

State v White ... ... .... ....... ....... ...... ........ .... ..... .... ............ .. .... .... ..... ... ........1-5

IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

ERIE COUNTY

State of Ohio Court of Appeals No. E-10-061

Appellee Trial Court No. 2008-CR-329

V.

Jimmie White

Appellant

DECISION AND JUDGMENTNpy 18 201

Decided:

Kevin J. Baxter, Erie County Prosecuting Attorney, and

Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.

Eric J. Allen, for appellant.

OSOWIK, P.J.

{¶ 1} This is an appeal from a judgment of the Erie County Court of Common

Pleas, which found appellant guilty of an amended count of receiving stolen property.

Appellant was sentenced to a term of incarceration of 143 days, whereupon, appellant

received a fu11 143 days credit for time served, thereby completing his sentence. For the

reasons set forth more fully below, the judgment of the trial court is affirmed.

{¶ 2} Appellant, Jimmie White, sets forth two assignments of error:

{¶ 3} "I. APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL

PURSUANT TO THE SEVENTH AMENDMENT TO THE FEDERAL

CONSTITUTION MADE APPLICABLE TO THE STATES BY THE FOURTEENTH

AMENDMENT.

{¶ 4} "II. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO

SPEEDY TRIAL UNDER THE STATE CONSTITUTION AND PURSUANT TO

OHIO REVISED CODE § 2945.71."

{T 5} The following undisputed facts are relevant to the issues raised upon appeal.

On March 22, 2008, appellant was arrested in connection with traveler check forgery and

receiving stolen property. The matter was continued on three occasions to enable

appellant to secure counsel. Following appellant's failure to appear at a scheduled

hearing on April 15, 2008, a warrant was issued for his arrest. On June 11, 2008,

appellant was indicted by an Erie County Grand Jury on three counts of forgery, one

count of receiving stolen property, one count of tainpering with records, and one count of

tampering with evidence.

{$ 6} Following the indictment, appellant posted bond. Appellant violated bond

and fled the state. On June 27, 2008, appellant's bond was revoked. A bench warrant

was issued on July 3, 2008. Appellant had unlawfully fled to Michigan. Appellant's

2.

illegal flight from the jurisdiction and state delayed his prosecution for nearly two years

as he fought extradition upon being located in Michigan. Appellant was ultimately

returned to Ohio pursuant to a Governor's Warrant on May 27, 2010. On June 18, 2010,

appellant entered a plea of "not guilty" to the charges. On July 12, 2010, appellant filed a

motion to stay all proceedings in the U.S. District Court for the Eastern District of

Michigan. It was denied. On July 28, 2010, appellant filed a motion to dismiss with the

trial court. It was denied. On September 1, 2010, appellant filed a motion claiming a

violation of the right to a speedy trial with the trial court. It was denied.

{T 7} On October 12, 2010, appellant pled guilty to one count of an amended,

lesser offense of receiving stolen property. The trial court sentenced appellant to 143

days iinprisonment. Appellant received 143 days credit for time served as of October 12,

2010, thereby completing his sentence at the time of sentencing.

{T 8} In both his first and second assignments of error, appellant contends that the

trial court violated his constitutional right to a speedy trial. Given the common premise

of both assignments, we will address them together. We will also address appellant's

contention that the trial court did not admonish that he was waiving his right to a speedy

trial pursuant to Crim.R. 11.

{¶ 9} "Where a defendant, convicted of a criminal offense, has voluntarily paid the

fine or completed the sentence for that offense, an appeal is moot when no evidence is

offered from which an inference can be drawn that the defendant will suffer some

collateral disability or loss of civil rights from the judgment or conviction." State v.

3.

Wilson (1975), 41 Ohio St.3d 236, at syllabus. (Emphasis added.) In conjunction with

this, the Supreme Court of Ohio has clearly stated, "The general view is that where an

accused enters a plea of guilty he waives his right to raise the denial of his right to speedy

trial on appeal." Village of Montpelier v. Greeno, (1986), 25 Ohio St.3d 170.

{¶ 10} Applying these controlling legal principles to the facts and circumstances

of this case, we find that appellant's right to a speedy trial claim, argued and denied at the

trial court level, was waived for appellate purposes and is moot. Appellant entered a plea

of guilty to and subsequently completed his sentence based upon the credit for time

served pursuant to the standard set forth in Wilson. Appellant has not pled or otherwise

established any potential "collateral disability" that would enable his appeal to survive.

{¶ 11} Although appellant acknowledges that the guilty plea may constitute a

waiver under Ohio law, he further argues that there is no indication that he knowingly or

intelligently waived this right. Appellant bases this argument on the premise that the trial

court failed to admonish his waiver of right to speedy trial under Crim.R. 11.

{¶ 12} The Supreme Court of Ohio has stated: "A trial court must strictly comply

with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea

that the plea waives (1) the right to a jury trial (2) the right to confront one's accusers, (3)

the right to compulsory process to obtain witnesses, (4) the right to require the state to

prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self

incrimination. When a trial court fails to strictly comply with this duty, the defendant's

plea is invalid." State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 31.

4.

{¶ 131 A specific advisement of waiver of the right to speedy trial, as implied by

appellant, is not required under Crim.R. 11. Appellant's argument is without merit. The

record reflects the trial court complied with Crim.R.l l. Appellant's first and second

assignments of error are not well-taken.

{¶ 141 Wherefore, we find that substantial justice has been done. The judgment of

the Erie County Court of Common Pleas is affinned. Pursuant to App.R. 24, costs of this

appeal are assessed to appellant.

JUDGMENT AFFIRMED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See,

also, 6th Dist.Loc.App.R. 4.

Peter M . Handwork, J.

Mark L . PietYylcowski, J

Thomas J. Osowik , P.J.

CONCUR.

UDGE

This decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http://www.sconet.state.oh.us/rod/newpdf/?source=6.

I HEREt3YCERTIFYTHBSTQ L?fmA TRUE COPY OFTHE ORIGINALFILED IN THiS CFFlCS. ^^A S. G^ JSO^.

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